Effort to strip Naval Academy official of review in sex assault case is denied

Attorney seeking to deny superintendent's choice of whether to prosecute

A federal judge denied on Monday a request to strip the U.S. Naval Academy superintendent of his authority to decide whether to prosecute a sexual assault case involving three former Navy football players.

"For me to stick my nose in the Navy's business at this time would be inappropriate," said U.S. District Judge Ellen Hollander as she ruled from the bench.

A female midshipmen who accused three classmates of assaulting her at an off-campus party in Annapolis in 2012 asked the court to remove the superintendent, Vice Adm. Michael Miller, from the case.

Her attorney argued that Miller is biased in favor of the football team, and is worried about his reputation and that of the academy. In court papers, she also said Miller did nothing to curtail long days of questioning about the party and the woman's sexual history during a preliminary military review, called an Article 32 hearing.

"That's not a judicial temperament we need for a case of this gravity," said Susan Burke, the woman's attorney, during Monday's hearing.

Following the eight-day Article 32 hearing at the Washington Navy Yard in August and September, an independent investigative officer sent recommendations to Miller on how to proceed in the case — order a court-martial, punish the football players administratively or dismiss the case.

Under the military justice system, Miller decides whether to prosecute the case or not in his role as commanding officer of the accused midshipmen.

Miller received the investigator's report but deferred making a decision while the request for his removal was still active. He's not bound to follow the officer's recommendations.

Monday's ruling was on an injunction to strip Miller from the case immediately. A broader lawsuit on the issue is still technically active, but the judge's ruling casts doubt on whether it will be successful; Hollander will rule on the lawsuit as well.

Before announcing her decision, the judge spent two hours questioning Burke and Assistant U.S. Attorney Thomas Barnard, who represented the Navy, about the military justice system and case law.

Ultimately, she sided with Barnard's arguments that the alleged victim has avenues within military justice to deal with her concerns about Miller. If he declines to prosecute, for example, the midshipman can urge a higher-ranking Navy authority to review the decision, Hollander said.

"The Navy has authority to grant the relief requested," Hollander said.

She noted there's strong public interest in how the military handles sexual assault cases. High-ranking officials in the Navy, she said, "aren't blind, I think, to what's going on."

Burke has been a figure in efforts to change the military justice system, representing hundreds of service members who say they have been assaulted.

Some politicians also have taken up the issue and are seeking changes in the Article 32 hearings.

Cmdr. John Schofield, a Naval Academy spokesman, said the academy would not comment on a pending lawsuit.